P.J. Robinson Pty Ltd v Adam Cook

[2007] NSWLC 10

Local Court of New South Wales

CITATION:	P.J. Robinson Pty Ltd v Adam Cook [2007] NSWLC 10
JURISDICTION:	Civil
PARTIES:	P.J. Robinson Pty Ltd Adam Cook
FILE NUMBER:	636/07
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	06/15/2007
MAGISTRATE:	Magsitrate B A Lulham
CATCHWORDS:	Practice - application for change of venue - appropriate court - consideration of balance of convenience
LEGISLATION CITED:	Uniform Civil Procedure Act Uniform Civil Procedure Rules
CASES CITED:	Wentworth v Graham [2002] 55 NSWLR 638 Westpac Banking Corporation v Abemond Pty Limited (Supreme Court, 28th October 1994 unreported) Fung v Stocovaz (2006) NSWSC 1345
REPRESENTATION:	Advocate for Defendant/Applicant: Mr M.P. Board (Solicitor) Solicitors for Defendant/Applicant: C.K.B. Partners Counsel for Plaintiff/Respondent: Mr Warburton Solicitors for Plaint/Respondent: Mason Black
ORDERS:	Applicant's motion dismissed

BACKGROUND TO DISPUTE

1    P.J. Robinson Pty Ltd (the applicant) sued the defendant to recover the cost of the repairs and towing expenses for its motor vehicle arising out of a collision which occurred at Bondi. It alleged Adam Cook (the respondent) was the driver at fault in the accident. The respondent filed a Defence admitting fault in the accident, but denying that the amount claimed for the repairs and towing expenses was reasonable. The applicant commenced the proceedings in the Downing Centre. The respondent filed a Motion seeking to have the hearing transferred to the Kogarah Local Court. The Motion was determined by a Registrar in Chambers who ordered the proceedings to remain at the Downing Centre. The applicant filed a Motion seeking a review of the Registrar’s decision.

THE NATURE OF THE REVIEW

2    The Motion for review was filed pursuant to r 49.19 of the Uniform Civil Procedure Rules (UCPR) which provides as follows:

R49.19 If a Registrar gives a direction or makes an order or does any other act in any proceedings, the court may, on application by any party, review the direction order or act and make such order by way on confirmation, variation, discharge or otherwise as the court thinks fit.’

3 There is considerable debate as to the nature of the review and as to whether it is a review or an appeal. The difficulty is exemplified by r 49.20 which in sub-section 1 provides that an application for review of a decision of a Registrar is to be instituted by a Notice of Motion. Sub-section 2 provides that the appeal must be instituted within 28 days after the material date. The dispute is discussed to in detail in Ritchies Practice at paragraph 49.19.5. I note that UCPR r 49.23 expressly contemplates further evidence being adduced on the review. The learned authors summarised the position as follows:

‘ For all of these reasons, as well as the more general considerations required by s 56 to s 58 of the Civil Procedure Act, it should not be assumed that the court would be prepared to treat an application for review as involving a complete hearing de novo. The fact of the Registrar’s decision, especially when it relates to a matter of practise and procedure, is inevitably a relevant consideration in the exercise of the review power ( Wentworth v Graham [2002] 55 NSWLR 638 at 640-1). Accordingly it is proper for the court to exhibit a natural inhibition against the unrestrained substitution of the reviewing court’s view for those of the original Tribunal ( Westpac Banking Corporation v Abemond Pty Limited Santo J, 28th October 1994 unreported).’

4    I propose to consider the Registrar’s decision as to the venue on the basis of the evidence before the Registrar and to then reconsider his decision, taking into account the further evidence before me.

CONSIDERATION OF THE RULE RELATING TO TRANSFER OF PROCEEDINGS BETWEEN LOCAL COURTS

5 R 44.1 sets out the procedure in relation to an application for a transfer of proceedings between Local Courts. Unfortunately it will be necessary for me to set out the rule in full. The highlighting is as set out in the rule:

[r 44.1] Transfer of proceedings between Local Courts (cf LCR Part 3, rule 4)


44.1 (1) In this rule, appropriate Local Court, in relation to proceedings in a Local Court, means the Local Court held nearest to any of the following places:


(a) the place where the defendant has his or her place of business.


(b) the place where the defendant was resident at the time the cause of action in the proceedings arose.


(c) the place where the defendant has his or her place of business.


(d) the place where the defendant had his or her place of business at the time the cause of action in the proceedings arose.


(e) the place where the defendant has his or her place of employment.


(f) the place where the defendant had his or her place of employment at the time the cause of action in the proceedings arose.


(g) the place where the cause of action in the proceedings arose.



(2) A defendant in proceedings before a Local Court that is not an appropriate Local Court (the current Local Court ) may apply to the current Local Court for the proceedings to be transferred to an appropriate Local Court.


(3) Such an application:


(a) must be supported by an affidavit:


(i) identifying each of the relevant places referred to in subrule (1)(a)-(g) and the appropriate Local Court in respect of that place, and


(ii) specifying one of the appropriate Local Courts as the Local Court at which the defendant prefers the proceedings to be heard (the defendant’s preferred Local Court), and



(b) must be filed in the current Local Court at the same time as the defence is filed or within such further time as the current Local Court may allow.


(4) Within 14 days after service of the defendant’s application, any party may file in the current Local Court:


(a) a notice specifying one of the other appropriate Local Courts identified in the application as the Local Court at which the plaintiff prefers the proceedings to be heard, or


(b) a notice opposing the application for reasons set out in the notice.



(5) If within the time allowed by subrule (4) no party files a notice opposing the defendant’s application, the proceedings are taken to have been transferred from the current Local Court to the defendant’s preferred Local Court.


(6) If within the time allowed by subrule (4) each party (other than the defendant who has applied for the transfer) files a notice under subrule (4)(a) specifying the same Local Court, the proceedings are taken to have been transferred from the current Local Court to the Local Court so specified.


(7) If different parties file notices under subrule (4)(a) specifying different Local Courts, or if any party files a notice under subrule (4)(b), the registrar of the current Local Court must determine the defendant’s application for the transfer or proceedings:


(a) by refusing the application, or


(b) by directing that the proceedings be transferred to such Local Court (whether or not an appropriate Local Court) as it thinks fit, or


(c) by referring the matter for determination by the court.



(8) Unless the court orders otherwise, proceedings on the application as a consequence of the filing of a notice under subrule (7)(c) are to be heard in the absence of the public.

6    In this matter the Statement of Claim was filed at the Downing Centre referred to in the rules as the ‘current Local Court’.

7    The applicant filed an application by motion identifying as appropriate courts Waverley, Kogarah and Parramatta and indicated Kogarah as the defendant’s preferred Local Court.

8    The respondent filed a notice opposing the application for transfer to Kogarah setting out its reasons for its opposition.

9    In those circumstances r 41.1(7) provides that the registrar must determine the application for the transfer of proceedings:

(a) by refusing the application, or


(b) by directing that the proceedings be transferred to such local court (whether or not in an appropriate local court) as it thinks fit or,


(c) by referring the matter for determination by the court.

10    It is important to analyse the power available to the registrar. Clearly under subsection 7 (b) the registrar has the power to direct that the proceedings be transferred to a local court whether or not that court is an appropriate local court, as it thinks fit. Specifically the registrar is able to transfer the proceedings to a local court which is not an appropriate local court within the definition. In my view the registrar has the same power in refusing an application, so that the registrar would be entitled to refuse the application if the effect was that the proceedings would not be transferred in this case to Kogarah, but would remain for hearing at the Downing Centre, even if the Downing Centre was not an appropriate court within the meaning of the definition in r 44.1(1).

11    I make that specific finding because Mr Board’s submissions for the applicant rely very strongly on the proposition that the registrar was in error in finding that the Downing Centre was an appropriate local court. In my view there is no evidence that the registrar did find that the Downing Centre was an appropriate local court within the definition of r 44.1(1) nor was it necessary for him to do so, based on the reason I have set out above.

12    I am satisfied that r 44.1(7) requires the registrar when the applicant selects a venue, (in this case Kogarah) and the respondent seeks to retain another court (in this case the Downing Centre) to decide the issue between the parties on balance of convenience factors, and in doing so he can direct that the venue be either of those courts or some other local court and the court he selects need not be an appropriate local court within the definition of r 44.1(1).

13    In making those findings I concede that the letter forwarded to the parties by the registrar of the court, which appears to be a standard letter and not in any form required under the Act, may be misleading. The letter is in the following form:

‘The registrar of the court has made the following order in respect of your affidavit as to change of venue to another local court; the venue remains unchanged as this matter has been commenced in an appropriate court. The notice of defence will be dealt with and parties will be notified in due course.


If you do not understand what this letter means or what you should do, then you should seek legal advice. If you do not have a solicitor then the staff at any local court will help you free of charge. Advice specifically related to your circumstances may then be given.’

14    The letter was correct in that the deputy registrar who determined the application in chambers was that the venue was to remain unchanged, that is, the Downing Centre. However there is no evidence that the deputy registrar, who determined the matter, found that the matter had been commenced in an appropriate court within the definition of r 44.1(1). It was not necessary for him to do so.

The evidence before the registrar

15    The applicant’s solicitor Martin Pearce Board filed the following affidavit in support of the application:

1. I am the solicitor for the defendant.

2. I believe that the information contained in this affidavit is true.

3. These proceedings have not been commenced in an appropriate Local Court.
4. The appropriate Local Courts for the purposes of rule 44.1(1) of the Uniform Civil Procedure Rules 2005 are:
a. Waverley, which is the Local Court nearest to the place where the defendant is resident
b. Kogarah, which is the Local Court nearest to the place where the defendant was resident at the time the cause of action in the proceedings arose
c. Parramatta, which is the Local Court nearest to the defendant’s place of employment
d. Parramatta, which is the Local Court nearest to the defendant’s place of employment at the time the cause of action in the proceedings arose
e. Waverley, which is the Local Court nearest to the place where the cause of action in the proceedings arose.
5. The appropriate Local Court where I prefer the proceedings to be heard is Kogarah.

16 The motion and the affidavit comply with Form 59 of the UCPR forms. It appears to me that the form prescribed does not set out the information required by r 44.1(3) which requires the applicant to identify each of the relevant places referred to in subrule (1)(a) to (g) and the appropriate local court in respect of that place. In relation to paragraph 4(4) for instance, the Statement of Claim indicates that the accident occurred at Bondi. In my view r 44.1(3)(i) would require the applicant to identify the place of the accident (in this case Sandridge Street, Bondi) and to then nominate the local court nearest to that place, which would appear to be Waverley. As the affidavit complies with the prescribed form I accept it as complying with the rule.

17    Mr Board’s affidavit does not provide any evidence or facts or information on which the registrar could rely when determining the balance of convenience factors as to which court will be the venue.

18    The plaintiff/respondent relied on the affidavit of Muharrem Candan Koyuncu which deposed as follows;

On 26 March 2007, I say on oath:


1. I am the Solicitor in the employ of the Solicitor for the Plaintiff.
2. I verily believe that the allegations of fact made in this affidavit are true.
3. I have day to day carriage of this matter.
4. The Notice Opposing Transfer to a Local Court is filed under Part 44, Rule 1(4)(b) of the Uniform Civil Procedure Rules 2005.
5. I believe that the Court in which the action has been commenced, the Local Court at Sydney, is an appropriate Court.
6. The cause of action of this matter is a motor vehicle collision.
7. The Notice of Grounds of Defence in this matter has been filed under instructions from the Defendant’s subrogated insurer. AAMI Insurance Limited, whose registered office and principal place of business is located at 99 Walker Street, North Sydney.
8. The Defendant has admitted liability for the collision in Paragraph 8 of the Defence and as it is a repair dispute, it will only be the assessor employed by AAMI that will give evidence at the hearing, as was the case in previous matters before the Court, which involved repairs to Mercedes Benz Motor Vehicles.
9. The Downing Centre Local Court has jurisdiction to hear the matter under the Local Courts Act 1982.
10. The Plaintiff will seek the costs of having to respond to the Defendant’s Application to transfer the proceedings to Kogarah Local Court.

THE REGISTRAR’S DECISION

19    In preparing this judgment I have access to the court file which contains a cover sheet recording the registrar’s decision. It appears to me that the cover sheet may not have been available to the parties, and I caused a copy to be forwarded to each party and gave them the opportunity to make further submissions if required.

20    The cover sheet provides the following information:

. Venue changed no
. Venue to remain at Downing Centre
. Not satisfied that Kogarah is the most appropriate court
. No order as to costs.
. Both solicitors are situated in Sydney.

21    Following that decision the registrar advised the parties that the venue remains unchanged.

CONSIDERATION OF REGISTRAR’S DECISION BASED ON EVIDENCE BEFORE HIM

22    I propose to deal with the party’s submissions as to the evidence before the registrar.

23    Mr Board submitted that the registrar made his decision on a number of allegations of fact which were materially incorrect and false and asserted that they were made in circumstances where Mr Koyuncu (solicitor for the defendant) had recklessly disregarded the truth when making the following submissions:

(i) His belief that the local court at Sydney is an appropriate local court within the meaning of 44.1(1) of the UCPR.


I accept that Mr Koyuncu’s belief and submission may have been incorrect, but for the reasons already set out, it was not necessary for the registrar to accept that submission to come to the decision that he did.
(ii) That Mr Koyuncu had referred to AAMI Insurance Limited, whereas the correct name was Australian Associated Motor Insurances Limited (AAMI).


I find it extraordinary that Mr Board would submit that such a typographical error would had influenced the decision to be made by the registrar in any way.


(iii) That Mr Koyuncu incorrectly nominated the registered office of AAMI as 99 Walker Street, North Sydney.


Mr Koyuncu conceded that information in relation to the registered office of AAMI is incorrect. He maintained his belief that 99 Walker Street, North Sydney is the principal place of business for AAMI. There is no evidence that such error affected or would have affected, the decision of the registrar in any way.


(iv) That Mr Koyuncu misled the registrar by not stating that the defendant did not admit the ownership of the plaintiff’s motor vehicle in its defence.


I am not satisfied that the fact that the defendant did not admit ownership in relation to the plaintiff’s motor vehicle would have affected the registrar’s decision in any way. The registrar was entitled to look at the pleadings when coming to his decision.

(v) That Mr Koyuncu recklessly disregarded the truth of the facts by making no reference in his affidavit to any particulars in relation to the plaintiff’s company at all.


I reject such. Mr Koyuncu was, as he pointed out, acting for the plaintiff under subrogation on behalf of the NRMA. As Mr Koyuncu submitted, the only issue was quantum. In those circumstances the particulars in relation to the plaintiff’s company were not relevant.

24    Mr Board then made the following submissions in paragraphs 10, 11 and 12:

1. The fact that motor vehicle ZEX977 was insured by AAMI at the time of the collision is not a relevant consideration in determining inappropriate local court under r 44.1(1) .


2. The fact that motor vehicle PJR950 was insured by Insurance Australia Limited (NRMA) is not a relevant consideration in determining an appropriate local court under r 44.1(1).


3. The fact that the solicitors for the plaintiff and defendant act pursuant to rights of subrogation is not a relevant consideration in determining an appropriate local court under r 44.1(1).

I accept those submissions, but the facts referred to in each paragraph provide important relevant information for the consideration of the registrar when determining the balance of convenience issues.

FINDING RE DECISION OF REGISTRAR

25    I find the registrar made the correct decision. The only evidence relied upon by the applicant was that the defendant at the time the cause of action arose, was living at a place closest to the Kogarah Local Court. He no longer lived at that place. The registrar was entitled to be satisfied on the evidence that liability had been admitted and that the defendant would not be called to give evidence and that the applicant would not need to even seek instructions from the defendant, but would seek instructions from its subrogated insurer AAMI. He was entitled to find that the only witness for the applicant would be a loss assessor employed by each of the insurance companies and that the solicitors for both parties had offices within the C.B.D.

26    In those circumstances all the evidence in relation to balance of convenience favoured the matter staying at the Downing Centre. There was not one skerrick of evidence on the balance of convenience considerations in favour of Kogarah.

CONSIDERATION OF THE APPLICATION FOR TRANSFER TO KOGARAH ON THE EVIDENCE BEFORE ME

27    I take into account all of the evidence and submissions contained in the affidavit of Mr Board filed in the Motion before me. I have already dealt with those submissions as the evidence and submissions went to the decision of the registrar.

28    Mr Board submitted before me that there was no evidence that the matter would not receive an earlier hearing date at Kogarah than at the Downing Centre. That submission was wrong in that defended civil matters in the General Division will not get a hearing date at Kogarah. A magistrate presides at the Kogarah Local Court three days a week. The court does not hear defended matters in the Civil Division. Depending on their length, the matters are referred for hearing either to Sutherland or to the Downing Centre Local Court. Those arrangements for the hearing of defended civil matters from Kogarah are made by the court pursuant to its powers under s 57 of the C.P.A.

29    In making the submission in relation to expected dates for hearing, Mr Board referred to a matter in which I had been involved immediately prior to the hearing of this motion. The matter was Ede v Adamson. It was adjourned for further hearing to the 1st and 2nd of November 2007. Mr Board referred to allocation of those dates as evidence of some delay in obtaining hearings in the Downing Centre. His submission was wrong. Ede v Adamson is a case in which I am part heard and which was set down for hearing on 7th and 8th of June. The hearing dates had to be vacated because of the late service of an expert report. I was able to offer the parties the two days required on any day during the week of the 2nd of July 2007. Those dates were not suitable to the parties. There were considerable dates available between the 20th of August and the 29th of October, but I will be away on long service leave during that period. It was in those circumstances that the further two days were fixed for the 1st and 2nd of November, during the first week I return to work. The adjourned dates in the matter of Ede v Adamson did not support any submission made by Mr Board.

30    Mr Warburton prepared a Notice of Contention. It was objected to, but I indicated I would rely on those parts of it which consisted of submissions.

31 Mr Warburton correctly submitted that the registrar and myself are required to consider the matters before the court, taking into account the overriding purpose of the Civil Procedure Act set out in s 56 and the principles set out in s 57 provides:

S 56 provides:
‘1. The overriding purpose of this Act and Rules of Court in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issue in the proceedings.


2. The party must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or Rules of Court and when it interprets any provision of this Act or of any such Rule.


3. A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with the directions and orders of the court.

32    S 57 of the Act provides as follows;

‘ 1. For the purpose of furthering the overriding purpose referred in s 56(1) the proceedings in any court are to be managed having regard to the following objects:


(a) the just determination of the proceedings


(b) the efficient disposal of the business of the court


(c) the efficient use of the available judicial and administrative resources


(d) the timely disposal of the proceedings and all other proceedings in the court at a cost affordable by the respective parties.


2. This Act and any Rules of the Court are to be so construed and applied and the practise and procedure of the courts are to be so regulated, as to best to ensure the attainment of the objects referred to in subsection 1.

33    I propose to give effect to ss 56 and 57. It is necessary for me to discuss briefly the arrangements for the hearing of defended civil matters in the Downing Centre and in other suburban local courts and the nature of the hearing in matters such as this, and the previous history which such matters have had in the Downing Centre.

34    At the Downing Centre approximately twelve magistrates are available to hear matters each day. Five one day civil matters are listed for hearing each day. On average about two proceed to hearing. Two-day matters are heard during special sittings heard approximately every two months. Matters are listed for callover six weeks after the date of the filing of the first Defence. Matters are expected to be set down for hearing on either the first callover date or the second callover date, two to four weeks later. The hearing dates are generally within six to seven months of the date of the filing of the Defence. In this matter:

The Statement of Claim was filed 1 February 2007
Defence filed 7 March 2007
First callover dated 7 June 2007 (date delayed as a result of motion to transfer proceedings)

35    On 7 June 2007, but for this motion, the matter would have been set down for hearing during the week commencing 24 September 2007. Statistics available to the court indicate that the Downing Centre is able to generally and regularly issue earlier hearing dates for defended civil matters than any other local court in the metropolitan area.

36    This matter appears to be one of a considerable number of similar cases either determined by the court or awaiting hearing. Typically, as in this case, the motor vehicle involved is a Mercedes Benz. It is repaired at Perfect Auto. The insurance company holding the comprehensive motor vehicle insurance policy on the vehicle not at fault, is the NRMA. The insurance company with the policy over the vehicle at fault, is AAMI. NRMA approve the amount of the repairs to be carried out by Perfect Auto. It seeks to recover the amount of the repairs from AAMI’s client. In the court proceedings liability is admitted, but AAMI puts quantum in issue. NRMA is represented by Mason Black. AMMI is represented by C.K.B. Partners. C.K.B. Partners invariably brief Mr K.J. Manion to appear. Mason Black regularly brief Mr J. Gruzman and occasionally other counsel.

37    Mr Warburton in his submissions referred to Mr Koyuncu’s statement that ten of such matters have been completed. I cannot verify his figures, but I was involved in three of such matters as follows:

Matter No. 11986/04 Lambros v Rhiethmuller heard over two days. Amount claimed $15,054.76. Amount conceded $9,252.94.


Matter No. 6956/05 Ausbrand Pty Ltd v Vlahos heard over two days. Amount claimed $9,239.81. Amount conceded $4,456.26.


Matter No. 6486/05 Mansour v Colussi heard over two days, part heard for a further day to 15 June 2007. Amount claimed $12,460.59. Amount conceded $7,495.48.

38    In those matters each party relied on the evidence of an assessor employed by the respective insurance companies. Although the amount actually in dispute is small, the matters are bitterly contested and take considerable time.

39    AAMI represented by C.K.B. Partners has had numerous similar matters involving other insurance companies before the court. I have been involved in several of those matters. One, the matter of Baker v Power occupied five days of hearing time.

40    The matters are not without their legal complexity. In the matter of Fung v Stocovaz (2006) NSWSC 1345 the Supreme Court agreed to the transfer to it of an action in which Alliance Insurance insured the plaintiff and AAMI insured the defendant. The cost of the repairs was $14,197.67. The matter was transferred to the Supreme Court on the basis that it raised a question of law or principle common to many other actions in the Local Court. His Honour Judge Patton AJ was asked to determine the following questions:

1. Is the plaintiff entitled to damages from the defendant which indemnify him for the actual cost of repairs to the motor vehicle referred to in the estimate?


2. If so, can the defendant’s liability for damages to indemnity the plaintiff for the actual cost of repairs to the motor vehicle be reduced to the extent that the actual cost of repair;


(i) were not ‘fair and reasonable’ and/or


(ii) were extravagant?

The learned Judge gave his decision on 12 December 2006. Leave to appeal his decision was granted by the Court of Appeal and the appeal is awaiting hearing in the Court of Appeal.

41    The court’s estimate is that matters in which C.K.B. Partners are involved on behalf of AAMI, occupy at least 5% of all of the available court time for defended civil matters at the Downing Centre.

42    Consistent with its obligations under s 57 of the Uniform Civil Procedure Act, the local court has made arrangements relating to the hearing of defended civil matters in the general division of the court in other local courts in the metropolitan area. Waverley, Balmain and Newtown Courts do not hear such matters and they are transferred to the Downing Centre. Kogarah Local Court does not hear such matters and depending on their length, are transferred to either the Sutherland Court or the Downing Centre. Arrangements are made on a case by case basis with all other courts on the general understanding that matters likely to take two days or more, are transferred from each other metropolitan local court to the Downing Centre for hearing. The Downing Centre Local Court hears 90% of all defended General Division civil work. Such arrangements are essential to ensure each of the objects of case management set out in s 57 namely:

1. The just determination of the proceedings.


2. The efficient disposal of the business of the court.


3. The efficient use of available judicial and administrative resources.


4. The timely disposal of the proceedings and all other proceedings in the court at a cost affordable by the respective parties.

43    The transfer of matters such as this to suburban local courts would cause enormous difficulties in the timely disposal of the proceedings and all other proceedings in those courts. Existing workloads mean that such courts would not be able to dispose of matters of this nature in a timely or efficient manner.

44    The applicant’s motion is dismissed. The venue will remain at the Downing Centre. I make that order under r 44.1(7)(b).

45    I will hear from the parties on the question of costs.

B.A. LULHAM